Rajesh Kumar vs State
2013 Latest Caselaw 1408 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       DECIDED ON : 21st March, 2013
+                          CRL.A. 970/2005

      RAJESH KUMAR                             ....Appellant
               Through :         Ms.Rakhi Dubey, Advocate.

                                 versus

      STATE                                 ....Respondent

                   Through :     Mr.M.N.Dudeja, APP.
       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (Open Court)

1. The appellant- Rajesh Kumar challenges judgment dated

06.07.2005 in Sessions Case No.11/2003 arising out of FIR No. 734/1998

PS Dabri, by which, he was held guilty for committing offences under

Sections 363/366/342/354/34 IPC. Vide order dated 12.07.2005, he was

sentenced to undergo RI for five years with total fine ` 5,000/-.

2. Allegations against the appellant were that he, Billa and

Pramod kidnapped prosecutrix 'X' (assumed name), aged 10 years and

committed rape upon her. Charges under Sections 342/363/366/34 IPC

and under Section 376 (g) were framed to which he pleaded not guilty and

claimed Trial. The prosecution examined six witnesses to substantiate the

charges. In his 313 Cr.P.C. statement, the appellant pleaded false

implication. Earlier he and Billa were proclaimed offenders. After

appreciating the evidence and considering the rival contentions of the

parties, the Trial Court, by the impugned judgment, held the appellant

guilty for the offences described previously and sentenced him. Being

aggrieved, the appellant has come in appeal.

3. During the course of arguments, learned counsel for the

appellant MsRakhi Dubey, Advocate, on getting instructions from the

appellant present in person stated that the appellant has opted not to

challenge his conviction under Sections 363/366/342/354 IPC. He

however, prays to take lenient view and to release him for the period

already undergone in this case.

4. I have considered the submissions of the parties and have

examined the Trial Court record. Since the appellant has not opted to

challenge the findings of the Trial Court on conviction under Sections

363/366/342/354 IPC, order of conviction of the Trial Court stands

affirmed.

5. Regarding order on sentence, it reveals that the appellant was

sentenced to undergo RI for five years with total fine ` 5,000/- under

various offences. Nominal roll dated 18.03.2006 reveals that the appellant

remained in custody for three years, eight months and four days as on

09.03.2006. He also earned remission for two months and twenty one

days. He was not involved in any other criminal case. Fine was deposited

in the Court. The substantive sentence of the appellant was suspended on

30.03.2006 and he was admitted to bail. There are not allegations that

during the pendency of the present appeal, the appellant indulged in any

other criminal activity. It is stated the he is an unmarried person. He was

of young age at the time of incident. Considering all these mitigating

circumstances, in my considered view, no useful purpose will be served to

send the appellant to serve the remaining unexpired portion of the

substantive sentenced awarded to him. In the interest of justice and

considering the peculiar facts of the case, order on sentence is modified

and the appellant is sentenced for the period already undergone by him in

this case. He need not be surrender in the Court or before the Jail

Superintendent. Appeal filed by the appellant stands disposed of in the

above terms. Copy of the order be sent to Jail Superintendent for

information.

6. Trial Court record (if any) be sent back forthwith.

(S.P.GARG) JUDGE MARCH 21, 2013/tr